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Uppity Wisconsin - Progressive Webmasters

May 03, 2010

How Serious Is the FCC About Net Neutrality and Broadband Buildout?

All you need to know about the Federal Communications Commission's ability to address Net Neutrality and the buildout of broadband services to rural and other underserved users is this: industry providers such as AT&T, Verizon, Time Warner Cable, and the National Cable and Telecommunications Association prefer operating under the FCC's current vague and hazy powers, and are outraged at proposals to give the FCC more robust legal authority.

University of Michigan law professor Susan Crawford summed up the arguments for the FCC to take broadband seriously by regulating it as a telecommunications "common carrier" in a terrific NY Times Op-Ed last month:

(The FCC) can regain its authority to pursue both network neutrality and
widespread access to broadband by formally relabeling Internet access
services as “telecommunications services,” rather than “information
services,” as they are called now. All the commission needs to do is
prove it has a good reason.

It wouldn’t be the first time that
the F.C.C. relabeled Internet access services — and certainly not the
first time it addressed the need for equal access. Until August 2005,
the commission required that companies providing high-speed access to
the Internet over telephone lines not discriminate among Web sites.
This allowed innumerable online businesses — eBay, Google, Amazon, your
local knitter — to start up without asking permission from phone and
cable companies. There was nothing unusual about this legal
requirement; for more than 100 years, federal regulators had treated
telegraph and telephone service providers as "common carriers,"
obligated to serve everyone equally.

The companies that are most affected by the debate are the network
operators such as AT&T, Verizon and Comcast which provide the
transportation of Web traffic on their networks. They would be cheered
by a decision from the FCC to retain its current regulatory structure
that is a murkier statute and would make it more difficult for the
agency to impose rules on them. And they warn that reclassification of
broadband would hurt their businesses.

"It should come as no surprise . . . that leading financial analysts
and technology commentators have questioned this path," the biggest
telecommunications and cable trade groups wrote in a letter to
Genachowski last week. "Thus it is hard to imagine a regulatory policy
more at odds with the commission's goal of encouraging 'private
investment and market-driven innovation.' "

But net neutrality supporters -- companies such as Google and Skype
and public interest groups -- have called for the agency to shift
broadband Internet services more clearly under the agency's authority,
saying consumers would be more vulnerable to business decisions that
could cut off competition and access to applications on the Web.

In a letter
to Genachowski last Friday, University of Michigan law professor and
former Obama economic adviser Susan Crawford and other communications
law professors outlined a legal argument to reclassify broadband. They
disagreed with carriers who say the move wouldn't stand legal challenge.

"The FCC now faces a choice, It can abandon the idea of supporting
high-speed Internet access . . . and requiring providers of high-speed
access to disclose information about their costs and speeds," she wrote
with Columbia University professor Tim Wu and University of Nebraska
professor Marvin Ammori.

The telecommunications industry is spending millions on lobbying against these changes, making many of the same arguments against increased federal oversight over the structure of their businesses as were made by the health insurance lobby last year. Wall Street's favorite telecom stock guru, Scott Cleland, is getting high blood pressure over the prospect:

Premature characterizations that
this nouvelle regulatory "deeming" would somehow be easy, clean, or
containable, simply have not thought through the potential chaos,
havoc, and uncertainty that such a radical, foundational, and
over-reaching regulatory "deeming" would wreak on:

Legal/policy precedent, clarity, and stability;

Business investment, and innovation -- assumptions, incentives, models and practices;

Economic growth, private investment and job creation;

Industry financial stability, contracts, and debt covenants; and

Trust, cooperation, and respect the FCC needs to fulfill its mission and its National Broadband Plan.

This is an important decision that will probably get far less attention than this week's American Idol loser.

- Barry Orton

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The fight against net neutrality is heating up, and guess who is behind it.